Monday, April 3, 2006

Lawrence Lessig on Copyright

Lawrence Lessig is Professor of Law at Stanford Law School, the author of Free Culture, a monthly columnist at Wired since 2003, blogger, and father of the Creative Commons movement. He says for him there’s “too much travel, too much email, not enough time for reading or writing,” but he found some time
to answer my questions by email. (Feel free to share.)

I got a feeling the world of copyright is in a big mess today. What
do you think is the single biggest problem?

The problem is fear. The copyright industry fears the internet, and
they are exercising their (considerable) power to achieve control.
That effort is creating huge problems for a wholly creative and
productive use of digital technology.

Current laws aside, what forms of copying/ republishing/ making
derivative works do you think are clearly immoral or harmful to society – and which do you think are moral?

I think, with important exceptions, breaking the law is immoral, even
if the law itself should be changed. So I think the law governing
copyright should change, but I don’t support p2p file sharing under
the current state of the law.

Can you give some of the “important exceptions"?

When you’re willing to suffer the penalties as an act of civil
disobedience.

Is DRM always evil?

I don’t think technology should enforce copyright, so I would always
prefer no DRM to DRM. But if there is DRM, it must permit fair us,
and it must give authors the right to opt out of technological control.

Why shouldn’t technology enforce copyright?

Because copyright was designed with a human enforcer in mind.

How does the human enforcer claim his copyright?
Isn’t that tedious to do, hunting down copyright breakers when
technology can do it automated?

It is difficult. But repressing speech shouldn’t be easy.

Do you think bloggers should have better tools to defend against
splogs, automated spam blogs? Or do you too think here the human
enforcer must do some work and hunt them down, and then contact the
blog providers?

Yes, and no. I think there needs to be legislation and a bounty
system to make it enforceable.

How would a DRM look like that would allow people to make “fair
use” of the work?

It would allow them to turn the DRM off, and use the work under an
assertion that the use was fair.

Is it legal for me to break DRM (e.g. with a software tool I
download) for “fair use” purposes?

Not according to the DMCA, but it should be.

In your book Free Culture you’re detailing the legal system in
the US (and its faults). How much more complicated is the copyright
law on a global perspective? Which laws apply in digital publishing
anyway – is it the home-country of the server which is being
published on?

Copyright law is insanely complicated, everywhere. And the law that
US law thinks applies is the place where the activity occurs. So if I
download in the US work protected by US law but in the public domain
in the country where the server is, the download is still a violation.

The Digital Millennium Copyright Act, from what I understand, allows
people to make hosting services, search engines and so on take down
copyright-infringing material. However I’ve also heard that some
hosting services take down content upon only the receipt of such a
note – without verifying the claim. Can you confirm this?

When a site gets a notice and takedown, it can remove the material.
But if the person whose material has been removed challenges the
removal, then the site must determine whether the takedown was
justified.

So with DMCA take-downs, the material can be removed before the
creator is asked?

Yes, but the creator has a right to demand it be put up, and then the
site must decide.

What do you think is the ideal term for works to stay copyrighted,
and at what renewal rate? Aren’t the 50 years you talk about in Free Culture
too long already?

Certainly, but we need first steps to reasonableness.

What do you think of DVD country codes that don’t allow me to play
DVDs I ordered in the US on a typical German DVD player (or PC)?

They are a clumsy tool of price discrimination, which can be good as
well as bad.

I know many of the problems with region codes, but can you give an
example of where society benefits from them (or possibly, companies),
as you mentioned?

If they mean that the price can be lower in poorer regions, then it is
good.

Where do you see Creative Commons now in terms of where you want
it to be?

CC is my child. One is never settled about the life of one’s child.

Many Creative Commons licenses allow non-commercial only
republication, but I’m often unsure where “commercial” starts. For
example, what if I have ads next to your Creative Commons-licensed
book on my server to be able to cover my server costs? (And what if
one day those ads make more money than just that?)

It is an important problem. We’re in the process of clarifying, but
it is a hard problem to clarify.

Who are your biggest enemies in the copyright war, and have you
ever been threatened?

There are no enemies, just people who don’t yet understand. And yes,
I have been threatened, but by an ally, not an enemy.

Who was the ally that threatened you?

He was the person I was intentionally vague in describing.

What was your biggest single achievement in the copyright wars?

I’ve not achieved anything significant.

If sharing is better for the music industry and its artists, why
aren’t the RIAA simply
allowing it more freely... out of egoism?

What is good for artists is not necessarily good for record companies.

I’m playing devil’s advocate here: why does creativity always mean
to copy something? Can’t I be creative by being completely original?

I’d like to see you try.

Do you think a more fair copyright law will emerge and how do you
think people can help the cause?

Not yet, but if people pushed for it, yes.

What do you think of software patents?

Government regulation of the creative process that does more harm
than good.

What could be done to prevent rich people to threaten poor
people others with (copyright infringement) law-suits?

Aggressive judges who pushing abusers.

When you go shopping in Shanghai and other Chinese cities, there
are lots of public shops which sell cheap, seemingly mass-manufactured
copycat DVDs of Hollywood movies (often these movies are just released
to US cinemas). If you take a guess why do you think the Chinese
authorities don’t fight this more strongly? And do you think it’s a
big problem for Hollywood?

It hurts, not much, and certainly doesn’t benefit the Chinese.

What is the purpose of a trademark? And why does Marvel seem to get
away with putting a “™” after the word “super heroes"?

Trademarks are designed to avoid confusion – so you don’t believe
you’re getting something from X when you are in fact getting
something from Y. But I don’t underatand Marvel’s claims.